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Court Decision Changes Law Regarding Transgender Students

June 22, 2017

Yesterday, a
federal appellate court issued a decision regarding what school corporations
must do to accommodate requests by a transgender student to use bathrooms that
do not correspond with the student’s gender at birth. Under this decision,
which is binding on Indiana school corporations, a school corporation’s failure
to allow a transgender student to use a restroom that corresponds with their
new identity may violate Title IX and the U.S. Constitution.

In this case,
the high school student who was born a female began recognizing himself as a
male as an eighth grade student, and he was diagnosed with gender dysphoria
while a freshman in high school. As a freshman, he began hormone treatment and
then legally changed his name. The school district had largely accommodated the
student’s requests, such as allowing him to wear a tuxedo like other male
students in orchestra performances. But when he requested to use the boys’
restroom, the school district declined. Previously, and evidently unbeknownst
to the central office, the student had used the boy’s restroom without
incident, but this changed once a teacher encountered the student in the restroom.
Instead of granting the student access to the boys’ restroom, the school
district allowed him to use the girls’ restroom or a gender-neutral single
occupancy restroom in the school’s central office. To avoid the issue
altogether, the student restricted water intake, which aggravated his
vasovagoal syndrome. The condition caused the student to be dizzy and faint.
The increased effects of his condition and stress related to the accommodation
issues caused him to contemplate suicide.

The student
sued the school district under Title IX and the Equal Protection Clause of the
U.S. Constitution’s Fourteenth Amendment. The student also sought a preliminary
injunction to have the court immediately require the school district to grant
him access to the boys’ restroom. The lower court agreed with the student, and
the school district appealed.

On appeal, the
appellate court also agreed with the student. Citing a recent court decision
that expanded Title VII (which is a federal law that applies to employees’
claims against employers) to prohibit discrimination against homosexuals, the
appellate court concluded that Title IX protects transgender students as well.
The appellate court also found that the U.S. Constitution provided the student
with certain protections. Even though the school district argued that it was
protecting the privacy interests of other students, the appellate court found
that the school district’s presentation of evidence on this point was too
abstract and speculative since the school district had received no complaints
from other students. And the appellate court also questioned how the privacy
rights of other students would be invaded if the transgender student uses a
toilet in a restroom stall. Importantly, the appellate court repeatedly questioned
why the school district did not have a written policy on this subject,
suggesting that the school district’s stated defenses were manufactured after
the fact.

This decision
fills a void — for now — but it may be appealed. In the last few years, Indiana
public schools have received conflicting guidance from non-binding courts and
agencies. However, this decision is important because it comes from an
appellate court with jurisdiction over Indiana and is binding. If not appealed,
this decision will become the law of the land in Indiana. School corporations
should remain vigilant in monitoring this case.

In the meantime, and
while school is out, schools should review existing policies and practices and
schedule appropriate in-service training for administrators to handle these
sensitive issues.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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